Crumpton v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-837V
Filed: July 14, 2022
PUBLISHED
L.C., a minor by and through her
guardian ad litem, DANIELA Special Master Horner
CRUMPTON,
Attorneys’ Fees and Costs; Vaccine
Petitioner, Rule 18(b); Redaction; Denial
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Danny Chia-Chi Soong, Law Office of Danny Soong, West Covina, CA, for petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.
ORDER DENYING MOTION TO REDACT 1
I. Procedural History
Petitioner filed this action on September 9, 2014. (ECF No. 1.) After a successful
alternative dispute resolution (“ADR”) effort, the case was ultimately resolved via
stipulation. (ECF Nos. 75-76, 80.) Subsequently, on November 20, 2020, petitioner
moved for an award of attorneys’ fees and costs. (ECF No. 77.) I issued a decision
awarding such fees and costs on April 22, 2022. (ECF No. 90.) The instant motion
seeks to redact that decision. (ECF No. 91.)
Pertinent to this motion to redact, I awarded attorneys’ fees in a reduced amount
due in part to my finding that petitioner’s counsel had sought an unreasonably high
hourly rate. (ECF No. 90, pp. 2-5.) As part of the explanation underlying that finding, I
1
Because this order contains a reasoned explanation for the special master’s action in this case, it will be
posted on the United States Court of Federal Claims’ website in accordance with the E-Government Act
of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the order will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
1
included footnotes elaborating on two specific points. These footnotes are the subject
of petitioner’s motion.
Referencing counsel’s performance during the case as a factor in setting his
hourly rate, I explained in footnote 4 that:
Mr. Soong touts the size of the settlement in this case, presumably as an
implied metric of his performance. (ECF No. 77, p. 2.) However, it is
important to note that it took an unusually long period of time to resolve the
case, including referral to an extended year and a half long ADR process,
with substantial involvement by the ADR Special Master, to ultimately
resolve the case. The ADR Special Master took great pains explaining to
petitioner what information was needed to substantiate the available
damages in this case. (ECF Nos. 69-70.) This after petitioner’s counsel had
already spent a year and a half seeking to negotiate a settlement even
before the case entered ADR. Because this case resolved within the ADR
process, the undersigned is not privy to whether or how petitioner’s
counsel’s own legal acumen contributed to the ultimate outcome; however,
the record of this case is clear that counsel’s performance in the case was
inefficient and inexperienced, causing delayed resolution.
(ECF No. 90, n. 4.)
Additionally, noting that counsel had cited his involvement in a prior case in the
Program as support for his requested hourly rate, I explained in footnote 5 that:
It should be noted that petitioner’s counsel’s prosecution of his first Vaccine
Act case would charitably be described as unsuccessful. After commencing
settlement discussions, petitioner’s counsel moved for voluntary dismissal
on the assumption that petitioner could achieve a larger award in civil court
by suing the vaccine manufacturer. Petitioner’s counsel then commenced
suit in Los Angeles Superior Court alleging manufacturing and design
defects as well as failure to warn, apparently unaware that these claims
were preempted by the Vaccine Act. Petitioner moved for relief from the
judgment dismissing her case in this forum on the basis that her counsel’s
ignorance of the law was excusable neglect. Petitioner’s motion was denied.
G.G.M. by and Through Mora v. Sec’y of Health & Human Servs., No. 13-
421V, 2015 WL 1275389 (Fed. Cl. Spec. Mstr. Feb. 27, 2015). A motion for
review and subsequent appeal to the Federal Circuit did not succeed in
reopening judgment. 122 Fed Cl. 199, aff’d 673 Fed.Appx. 991. Although
the petitioner was eventually able to succeed in reopening judgment and
achieved an award of damages via settlement, she was by that time
represented by a different attorney who was ultimately responsible for
achieving the settlement. 2018 WL 6822408 (Fed. Cl. Spec. Mstr. Nov. 27,
2018). Counsel conspicuously did not offer the name of his first Vaccine Act
case in his motion or discuss the course or outcome of the case, merely
noting the injury and vaccine at issue, potentially raising a question of
candor. But in any event, based on this history and the fact that a different
attorney ultimately achieved the settlement in that case, it does not appear
2
that Mr. Soong’s prior case contributed significantly to his understanding of
the damages and settlement issues that informed much of the work done in
this specific case. (Also of note: an unpublished decision was issued in that
case awarding Mr. Soong interim fees and costs; however, the award was
based on the total amount requested, which was unopposed, and Mr.
Soong’s hourly rates were not discussed.)
(ECF No. 90, n. 5.)
After issuance of the decision awarding attorneys’ fees and costs, petitioner
timely filed the instant motion to redact the decision. (ECF No. 91.) Petitioner requests
that both of the above-quoted footnotes be redacted in their entirety from the decision.
(Id. at 1.) I held a recorded status conference in the case on May 9, 2022, to discuss
petitioner’s motion to redact. (Minute Entry, 5/9/2022.) Thereafter, respondent filed a
response to petitioner’s motion on May 17, 2022. (ECF No. 92.) Of note, respondent
advised based on the specific arguments advanced by petitioner that either a motion for
reconsideration or a motion for review would be more appropriate. (Id. at 5.) However,
the parties subsequently filed a Joint Notice Not to Seek Review of the decision
awarding attorneys’ fees and costs and judgment entered on May 31, 2022. (ECF Nos.
93-94.) Petitioner did not file any reply.
II. Legal Standard
Vaccine Rule 18(b) allows for objection to disclosure as contemplated by Section
12(d)(4) of the Vaccine Act, which provides that
A decision of a special master or the court in a proceeding shall be
disclosed, except that if the decision is to include information – (i) which is
trade secret or commercial or financial information which is privileged and
confidential, or (ii) which are medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of privacy, and if the
person who submitted such information objects to the inclusion of such
information in the decision, the decision shall be disclosed without such
information.
42 U.S.C. § 300aa-12(d)(4)(B).
The U.S. Court of Appeals for the Federal Circuit has not had occasion to
interpret this section of the Vaccine Act. Instead, there are two competing methods of
interpretation endorsed by different decisions in the lower courts. See Langland v. Sec’y
of Health & Human Servs., No. 07-36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr. Feb. 3,
2011); W.C. v. Sec’y of Health & Human Servs., 100 Fed. Cl. 440 (2011).
In Langland, the Chief Special Master examined a redaction request pursuant to
Section 12(d)(4)(B) in the context of common law traditions regarding redaction and
public access, the E-Government Act, and other provisions of the Vaccine Act favoring
public disclosure. 2011 WL 802695, at *6-8. The Chief Special Master concluded that
“the party seeking to seal a document faces a burden to show particularized harm
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outweighing the public interest in disclosure. This common law background informs the
correct construction of the language in section 12(d)(4)(B)(ii), and militates against
routine redaction of all sensitive medical information from special masters' decisions.”
Id. at *8. Upon review of the redaction request at issue, the Chief Special Master
concluded that the request was unsupported and only a redaction of the petitioner’s
minor child’s name to initials and redaction of the child’s birthdate was appropriate. Id.
at * 11.
Subsequently, in W.C., the Court of Federal Claims reviewed a redaction request
in the context of the Freedom of Information Act (FOIA), which the court observed to
employ language similar to Section 12(d)(4)(B) of the Vaccine Act. 100 Fed. Cl. 440.
The court focused on the idea that petitioner’s request “must be weighed against the
government's interest in public disclosure.” Id. at 461. Focusing specifically on the
identity of the petitioner, the court observed that it is petitioner’s medical history and
adverse vaccine reaction, and not petitioner’s own specific identify, that the public has
an interest in seeing disclosed. Id.W.C. has been interpreted as providing a more lenient standard for redaction as
compared to Langland. See, e.g., K.L. v. Sec’y of Health & Human Servs.,123 Fed. Cl.
497, 507 (2015) (noting that the Special Master below “argued that even when a Special
Master follows the lenient standard for redaction set forth in W.C., requests for redaction
have been denied because they failed to substantiate the basis for the request.”).
Nonetheless, special masters do not abuse their discretion by requiring petitioners to
affirmatively demonstrate that redaction is justified. Id. at 507-08 (finding that the special
master’s requirement that petitioner provide “sufficient cause to justify redaction” is not
contrary to the Vaccine Act or prior precedent and explaining that “[e]ach Special
Master must review every case and exercise his or her discretion, given the specific
facts presented in that particular case.”)
III. Party Contentions
With respect to footnote 4, petitioner argues that the “Special Master fails to fully
understand all of the dynamics involved in ultimately reaching the settlement of L.C.’s
case.” (ECF No. 91, p. 2.) In this motion, petitioner listed several factors bearing on the
mediation before asserting that “[t]hese logistics are private matters, which ought not to
have been discussed in a public forum. Nevertheless, these issues have to now be
brought up due to the court’s presumption that the delay of the resolution of the matter
was somehow due to counsel’s performance.” 2 (Id.) Petitioner also contended that the
undersigned is “not privy to the back-and-forth negotiations between Petitioner’s
counsel and Respondent’s counsel . . .” (Id.)
2
Importantly, however, the logistics cited in petitioner’s motion to redact were not discussed in the prior
decision regarding attorneys’ fees and costs. Indeed, petitioner specifically argues that they were
unknown to the undersigned. (ECF No. 91, p. 2.) To avoid even the possibility of creating any new
redaction interest, this decision likewise does not disclose these specifics. For the reasons discussed
below, the outcome of this motion does not turn on those details.
4
With respect to footnote 5, petitioner contends that “it is an invasion of privacy to
reference the case of a different minor’s case, G.G.M. by and Through Mora v. Sec’y of
Health & Human Servs., No. 13-421V, 2015 WL 1275389 to justify the court’s ruling on
the reasonableness of legal fees in the subject case.” (Id. at 3.) Petitioner further
argues that “[t]he reference to the G.G.M.’s case is unnecessary and, an invasion of
G.G.M.’s right to privacy in addition to an invasion of her family’s privacy.” (Id.) Finally,
petitioner asserts that “the court’s mere reference that L.C. is Petitioner’s counsel[’s]
second vaccine case is sufficient alone to justify the lower range of the attorney rate
being awarded without the need of referencing G.G.M. or another minor’s case.” (Id.)
In response, respondent “questions how the contents of footnotes 4 and 5 can be
a ‘clearly unwarranted invasion of privacy.’” (ECF No. 92, p. 5.) With regard to footnote
4, respondent stressed that the factors raised in petitioner’s motion to redact were not
disclosed by the undersigned’s decision and that “petitioner’s counsel appears to be
attempting to dispute the Special Master’s finding that petitioner’s counsel did not
efficiently resolve the case. The proper venue for that argument would be a motion to
reconsider or a motion to review, not a motion to redact.” (Id.) With regard to footnote 5,
respondent similarly explains that the footnote does not disclose any details regarding
G.G.M. or her injury and is limited to discussion of prior, publicly available decisions. (Id.
at 5-6.) Respondent also contends that there is a public interest in disclosure regarding
the undersigned’s reasoning in awarding the hourly rates at issue in this case. (Id. at 6.)
Respondent further stresses that “information about counsel’s performance would likely
be of interest to potential Vaccine Act petitioners.” (Id.)
IV. Discussion
The instant motion wholly fails to identify a privacy interest for this petitioner.
Counsel’s motivation for redaction is clear given that the two footnotes at issue contain
criticism of counsel. However, under the Vaccine Act and Vaccine Rule 18(b), it is the
party rather than the attorney that holds the recognized privacy interest. Moreover, the
opportunity for redaction pertains to information provided by the party. See 42 U.S.C.
§300aa-12(d)(4)(B) (affording a right of objection to “the person who submitted such
information”); Vaccine Rule 18(b) (explaining that redaction pertains to “any information
furnished by that party”). Here, the information at issue was not provided by the
petitioner, but rather derives from undersigned’s own observations of the case docket
and prior caselaw. In fact, neither of the footnotes at issue contains any information
regarding either L.C. or petitioner whatsoever, let alone medical or other sensitive
information that might risk an unwarranted invasion of privacy. Nor does the motion to
redact assert any trade secret or otherwise assert the presence of privileged or
confidential information.
Additionally, respondent correctly observes that none of the information cited as
sensitive within petitioner’s motion to redact (relative to footnote 4) is actually contained
within the decision that is to be publicly posted. (ECF No. 92, p. 5.) Moreover, with
regard to footnote 5, petitioner cites a privacy interest for a different petitioner from a
different case. (ECF No. 91, p. 3.) However, footnote 5 discusses publicly available
decisions and in any event does not reveal that child’s medical information. (ECF No.
90, n. 5.) Pursuant to Vaccine Rule 18(b) the G.G.M. petitioner was provided the same
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opportunity to request redaction of sensitive information prior to public disclosure of the
special master’s decision in that case. 2015 WL 1275389, at n. 1.
Nonetheless, petitioner argues that the undersigned’s analysis in footnote 4
should be removed because it misconstrues the circumstances of this case. (ECF No.
91, p. 2.) Petitioner further argues that the fact of this being counsel’s second case in
the program is sufficient support for the undersigned’s setting of counsel’s hourly rate,
leaving much or all of footnote 5 unnecessary and therefore also removable. (Id. at 3.)
However, the observations at issue were material to the undersigned’s analysis and
ultimate conclusion. Accepting these specific arguments advanced by petitioner as the
basis for excising analysis from the decision would necessarily constitute a rethinking
on the undersigned’s part of reasoning of the decision. This is well beyond the purpose
of a motion to redact. While one could conceive of scenarios where a balancing of
interests could allow some material findings to be redacted from the public, redaction
should not in the ordinary course alter the basis for the decision. Instead, as
respondent points out, the Vaccine Rules allow motions for reconsideration and motions
for review to consider the type of argument petitioner raises. (ECF No. 92, p. 5; see
also Vaccine Rule 10(e); Vaccine Rule 23.) Especially given the current posture of the
case, the misidentification of these arguments as relating to redaction rather than
reconsideration is not a harmless defect. Petitioner affirmatively filed a Joint Notice Not
to Seek Review on behalf of the parties in order to renounce review and expedite entry
of judgment based on the decision as it stood. (ECF No. 93.) Such action signals the
parties’ mutual understanding that the matters addressed by the decision are settled
and the redaction process should not risk casting doubt on that understanding.
Respondent likewise had a potential interest in seeking review of the decision awarding
attorneys’ fees and costs, inclusive of the specific details of its reasoning.
In any event, even accepting arguendo that these arguments are properly
presented and seek mere redaction rather than any change in the underlying analysis,
they still fail to meaningfully counsel redaction. Regardless of whether petitioner
considers the complained of analysis to be either incorrect or extraneous, it was the
actual rationale underlying the undersigned’s conclusion. The public interest in
disclosure encompasses the reasoning as well as the conclusion of the special master.
Langland, 2011 WL 802695, at *7-8 (quoting United States v. Foster, 564 F.3d, 852,
853 (7th Cir. 2009) for the proposition that “‘[i]nformation that affects the disposition of
litigation belongs in the public record unless a statute or privilege justifies
nondisclosure’” and further indicating that “[r]edaction of all medical information
concerning petitioners who seek compensation under the Vaccine Program would
render special masters’ decisions meaningless.”) In fact, contrary to what petitioner in
effect urges, the public’s interest in disclosure is, if anything, likely heightened when
there is reason to suspect that the special master’s conclusion may have been informed
by faulty reasoning. W.C., 100 Fed. Cl. at 460 (quoting United States Dep’t of State v.
Ray, 502 U.S. 164, 175 (1991) for the proposition that, under what the court considered
the analogous FOIA context, the individual right to privacy must be weighed against “the
basic policy of opening ‘agency action to the light of public scrutiny.’”) That is, redaction
should not be viewed as an opportunity for either special masters or the parties to
conceal mistakes.
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Finally, even setting all of the above aside, petitioner’s arguments are
unpersuasive in themselves. With regard to footnote 4, petitioner challenges the
substance of that footnote by presenting circumstances that may have additionally
contributed to the delay in resolving this case. (ECF No. 91, pp. 1-2.) However, nothing
cited in petitioner’s motion to redact is incompatible with footnote 4, especially when
viewing the footnote in the context of the decision as a whole. The footnote indicates
that a review of the docket shows counsel’s performance to have slowed resolution of
the case. Nothing in the footnote implies that it was the sole factor explaining the
duration of the case. 3 Moreover, other aspects of the decision further explain how
counsel’s own billing records demonstrate his inexperience and inefficiency. (See ECF
No. 90, n. 6 (discussing time spent researching seminal caselaw experienced counsel
would have known); n. 7 (discussing research into basic procedures such as “How to
file a petition”).) With regard to footnote 5, petitioner contends that the fact that this is
counsel’s second Vaccine Act case is alone sufficient to support the analysis setting
counsel’s rate. (ECF No. 91, p. 3.) However, this does not capture the issue addressed
by the footnote. In the motion for attorneys’ fees and costs, petitioner’s counsel
affirmatively cited the fact of his first case (without naming the case) as support for his
requested rate. (See ECF No. 77, p. 3 (noting of counsel that “this is his second
catastrophic vaccine injury case in Vaccine Court”).) The footnote explains why that
reliance is unpersuasive and potentially misleading.
In sum, contrary to petitioner’s arguments, footnotes 4 and 5 are reasonable
descriptors of the undersigned’s analysis and are necessary to a complete
understanding of the reasoning that led to the outcome reached by the decision,
reasoning which should not be altered upon a motion to redact. Combined with
petitioner’s complete failure to articulate any reasonable interest in nondisclosure within
the scope of the Vaccine Act and Vaccine Rules, this indicates that any balancing of
interests as counseled by either Langland or W.C., supra, strongly favors the public
interest in disclosure even without reaching respondent’s specific suggestion that future
petitioners have an interest in being aware of counsel’s past performance issues.
V. Conclusion
For all of the reasons discussed above, petitioner’s motion to redact is DENIED.
Publication of the decision at issue will be held until the time for the filing of any motion
for review has passed.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3
Additionally, as explained above, incorporated into the undersigned’s analysis is the caveat that
“[b]ecause this case resolved within the ADR process, the undersigned is not privy to whether or how
petitioner’s counsel’s own legal acumen contributed to the ultimate outcome . . .” (ECF No. 90, n. 4.)
7